Supreme Court May Deal Blow To Public Sector Unions In Janus Vs AFSCME

by Bamidele Ogunberu Posted on February 25th, 2018

Washington, D.C. USA: A landmark US Supreme Court case, Janus Vs AFSCME, backed by conservative and anti-union groups, challenging the legality of fair share fees that workers must pay to public sector unions – representing government employees – to help cover the costs of collective bargaining, will come up before the court on Monday, February 26th.

Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, is at the center of what could be the most consequential labor case the court has heard in years. He works under a contract negotiated between the state and the American Federation of State, County and Municipal Employees, a union he wants nothing to do with. But AFSCME has to advocate for Janus whether he wants it to or not, because the law requires a union to represent everyone in a bargaining unit equally.

The contract stipulates that each worker in Janus’ unit must chip in to cover the costs associated with collective bargaining ― commonly called “fair-share” or “agency” fees. No one can be forced to be a full-fledged member of a union or to help pay for its political activities. But in Illinois and many other states, workers like Janus can be required to pay these mandatory fees if a union represents them.

After Illinois Gov. Bruce Rauner (R) tried to challenge the state’s law allowing fair-share fees, Janus joined the lawsuit as an injured party. The Supreme Court will hear his case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, on Feb. 26.

Mark Janus doesn’t want to pay fees to the labor union that represents him.

Fair share fees have been upheld as legal for decades, but if the court rules against AFSCME, the entire U.S. public sector would essentially be a “right-to-work” zone ― meaning employees could no longer be required to pay anything to the unions that bargain on their behalf. There are already 28 “right-to-work” states; the Janus case would affect the other 22 states, which have an estimated 5 million public sector workers.

If the Supreme Court gives him the chance to opt out, the Illinois state employee will gladly take the justices up on their offer.

So, too, could millions of other public sector workers across the country, which would be a huge blow to the U.S. labor movement. A ruling in Janus’ favor would squeeze a critical revenue stream for organized labor at a time when overall union membership rates are already hovering near historic lows.

Conservative groups have planned for this moment for years. Their chance nearly came in 2016, after the Supreme Court took up a similar case involving a group of public school teachers in California who were paying agency fees to their union. The death of Justice Antonin Scalia led to a deadlock on the court and a reprieve for labor. But the confirmation of President Donald Trump’s Supreme Court nominee, Neil Gorsuch ― after the stonewalling of President Barack Obama’s nominee, Merrick Garland ― gave union opponents the conservative majority they needed for another shot.

The Supreme Court upheld the legality of fair share fees in the landmark 1977 public sector union case Abood v. Detroit Board of Education. The court reasoned that since all workers in a bargaining unit benefit from union representation, then a contract can require all the workers to pony up for it. Such an arrangement, the court decided, would promote labor peace. What workers don’t have to pay for is the union’s political expenditures ― campaign donations, election canvassing and the like. That’s why workers can opt to pay only the fair share fees, which are normal dues minus the portion that would go to politics.

But the conservative groups that have funded the lawsuit and filed briefs in support of Janus argue that workers should not have to pay any fees at all on First Amendment grounds. Drawing a distinction between private-sector and public-sector unionism, they claim that collective bargaining for government workers is inherently political, as what the union bargains for ― salaries and benefits for their members ― impacts state budgets and the use of taxpayer dollars. Therefore, the reasoning goes, being required to pay fair share fees amounts to compelled speech.

If the court accepts that argument, it could be harder for public sector unions to survive.

Unions call this the “free-rider” conundrum.

For all the problems Janus’ case presents unions, a ruling against them could force them to be better at what they do. On that, both sides agree: If workers can stop paying fair-share fees, unions will have no choice but to prove their value to those workers.

Inattentive and undemocratic unions could no longer afford to coast. The mere specter of Janus ― and the Friedrichs case before it ― has already compelled unions to reflect on their missions in a way many hadn’t before.

The largest public sector unions have undertaken “internal organizing” campaigns to prepare for the case, trying to make committed union members out of the workers they already represent. The hope is that engaging with these workers now will make them much more likely to support the union when they no longer have to.

The membership rate for government workers is a robust 34.4 percent, compared to just 6.5 percent in the private sector. That may be about to change.

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Bamidele Ogunberu

Bamidele Ogunberu

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